[2022] KEHC 15098 (KLR)

Juma & another (on behalf of the Estate of Juma Muchemi) v Odongo (Commercial Suit 45 of 2018) [2022] KEHC 15098 (KLR) (8 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15098 (KLR)

Republic of Kenya

In the High Court at Kisumu

Commercial Suit 45 of 2018

FA Ochieng, J

November 8, 2022

Between

Mary Juma

1st Plaintiff

Joyce Muchemi

2nd Plaintiff

on behalf of the Estate of Juma Muchemi

and

Grace Wambui Odongo

Defendant

Ruling

By an application dated 21st June 2022, the Defendant sought an order to arrest the Judgment which had been scheduled for delivery on 28th June 2022. 1. The Defendant sought leave of the Court to re-open the defence hearing, with a view to allowing the Defendant to file a list of further documents which she intends to adduce as further evidence.

2. The Defendant told the Court that she had obtained the additional evidence from the banks, after the court had set a date for Judgment.

3. The explanation provided by the Defendant was that she had been unable to obtain the additional evidence earlier because Chase Bank Limited had been dissolved by the Central Bank of Kenya, thus resulting in delays before she could get documents.

4. It was the Defendant’s case that the additional evidence would have a direct bearing on the Judgment, as it would bridge the differences which made the parties proceed with this case.

5. By her supporting affidavit, the Defendant deponed that when Juma Muchemi was ailing, the Defendant made payments of rent, in advance, after she had been requested to do so by the wife of Juma Muchemi.

6. The Defendant proposed to produce copies of deposit and remittance slips of funds which she had allegedly disbursed for the benefit of Juma Muchemi. According to the Defendant, she made the said disbursements in order to assist the wife of Juma Muchemi to settle medical bills which had been incurred whilst Juma Muchemi was ailing.

7. The Defendant further said that Juma Muchemi was receiving medical treatment in India, and that his wife was taking care of him, there.

8. In answer to the application Ms Mary Juma filed a Replying Affidavit.

9. The Respondents pointed out that only 2 of the documents which the Defendant proposed to produce, are from Chase Bank.

10. Secondly, the Respondents pointed out that Chase Bank collapsed in 2016, which was 2 years after the suit herein had been instituted. Therefore, the Respondents were of the view that the Defendant ought to have been able to get those documents before the Chase Bank went down.

11. The Respondents cast doubts on the authenticity of the documents.

12. When canvassing the application the Defendant submitted that it was in the interest of justice to allow her to re-open her defence case, as that would then enable the Court to make its Judgment based on all the evidence at its disposal.

13. The Defendant cited the decision in Mzee Wanje & 93 Othersvs A. K. Saikwa & Others (1982 – 88) KAR 462 in which the Court noted that when a Court was called upon to determine whether or not to exercise its discretion to receive further evidence, the following principles should guide the court;“(a)It must be shown that the evidence could not be obtained with reasonable diligence, for use at the trial;(b)The evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive;(c)The evidence must be such as presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

14. The Defendant also cited the decision of the Supreme Court in Mohamed Abdi Mahamudvs Ahmed Abdullahi Mohamed & 3 Others (2018) eKLR.

15. In that case, over and above the 3 considerations cited in the case of “Mzee Wanje” above, the Court said the following principles ought to guide the Court;“(d)where the additional evidence sought to be adduced removed any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;(e)the evidence must be credible, in the sense that it is capable of belief;(f)the additional evidence must not be so voluminous, making it difficult or impossible for the other party to respond effectively;(g)whether a party would reasonably have been aware of and procured the further evidence in the course of trial, is an essential consideration to ensure fairness and due process.(h)where the additional evidence discloses a strong prima facie case of wilful deception of the Court;i.The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in the evidence. The Court must find the further evidenceR needful.”

16. The Defendant said that she was not able to obtain the evidence in time. Her explanation was that the difficulty stemmed from the fact that;“…… the documents being bank statements for payments made under Chase Bank, and that the bank had been dissolved by Central Bank of Kenya, and getting the documents took time.”

17. I have perused the documents. None of them is a bank statement.

18. Secondly, it is only 2 of the 6 documents that have any nexus with Chase Bank.

19. “GWO – 1a” was a document from Western Union.

20. “GWO – 1b” is another document which bears the logo of Western Union. However, it also bears the logo of Bank of Africa.

21. “GWO – 1c” is a Customer Receipt from Family Bank.

22. “GWO - 1d” is a Deposit slip from Barclays.

23. “GWO – 1e” is a Deposit slip from Chase Bank.

24. “GWO – 1f” is a Deposit slip from Chase Bank.”

25. The Applicant did not provide the Court with any explanation about the documents which did not emanate from Chase Bank. Therefore, the Court does not have any basis upon which it could conclude that the collapse of Chase Bank adversely affected the Defendant’s ability to obtain those documents in a timeous manner. The Applicant did not demonstrate to this Court how the status of Chase Bank affected her ability to get the documents relating to Western Union, Bank of Africa, or Family Bank.

26. And in relation to the 2 documents relating to Chase Bank, I note that both are the Customer’s copies of the Deposit slips.

27. I understand those 2 documents to be copies which the Defendant had retained after she had made deposits.

28. The Defendant has not demonstrated to the Court that she retrieved her own copies of the deposit slips, from Chase Bank.

29. It does appear to me that if the Defendant had exercised due diligence, she ought to have been able to obtain the proposed additional evidence within time.

30. I appreciate that if the additional evidence was authentic, and was admitted in evidence, it would enable the trial court make an informed Judgment.

31. But because the Defendant had closed her case before making available the intended additional documentary evidence, I find that the Court would be facilitating a process through which the Defendant would fill-up some gaps in her evidence; if the Court allowed the re-opening of the defence case.

32. I also find that if the Defendant had made the payments which are allegedly depicted in the intended additional evidence, she would definitely have known of those facts. The Defendant failed to demonstrate how she could possibly have forgotten that she had made six significant payments, yet one of the issues that are key in this case was about alleged rental arrears.

33. In the result, the Defendant failed to meet the requirements for the grant of leave to tender additional evidence. I therefore dismiss the application dated 21st June 2022.

34. The Defendant will pay to the Plaintiffs, the costs of that application.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 8TH DAY OF NOVEMBER, 2022. FRED A. OCHIENGJUDGE